Allen E. Manley, Complainant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01983728 (E.E.O.C. Feb. 18, 2000)

01983728

02-18-2000

Allen E. Manley, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Allen E. Manley v. Department of the Treasury

01983728

February 18, 2000

Allen E. Manley, )

Complainant, )

) Appeal No. 01983728

v. ) Agency No. 961320 & 971049

)

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of age (58), in violation of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal

is accepted in accordance with EEOC Order No. 960.001. For the reasons

that follow, the Commission AFFIRMS the FAD as CLARIFIED.

The record reveals that during the relevant time, complainant was employed

as a GS-12 Revenue Agent at the agency's Internal Revenue Office, Atlanta,

Georgia. Complainant claims that he was subjected to age discrimination

as evidenced by the following incidents, which both occurred in August

1996: (1) he was not selected for promotion to a GS-13 Revenue Officer

position (Position), and (2) his annual performance appraisal (PA)

for June 1995 to June 1996 was lower than warranted by his work during

this period. Complainant contends that his PA was deliberately lowered

by his supervisor (S) in order to disadvantage his application for

promotion to the Position. He argues that his work was much superior

to that performed by younger co-workers who received higher evaluations

and awards, and that his qualifications for the Position were plainly

superior to that of the 49 year old selectee (SE), who was over 40, but

substantially younger than 58 years of age. Complainant asserts that

he has been historically treated unfairly by management both before and

after his reinstatement to employment with the agency in 1982.

Believing he was a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed two complaints, which were

investigated by the agency. At complainant's request, the agency then

issued a FAD on these complaints, finding no discrimination. Complainant

now appeals this determination, arguing that the investigation was

inadequate and that all of his arguments and evidence were not properly

considered.<2> The agency requests that we affirm its FAD.

The FAD concluded that complainant failed to establish a prima facie case

of age discrimination regarding either incident because he presented no

evidence to suggest that age was a factor (determinative or otherwise)

in the non-selection or his PA.<3> The FAD then determined that even if

complainant had established a prima facie of age discrimination regarding

these incidents, he was unable to prove that the agency's articulated

reasons were a pretext for age discrimination. Based on the legal

principles set forth in Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);

the Commission concurs with the agency's determinations in this case.

Regarding incident 1, the record shows that a panel of three ranking

officials ranked each application using the same method and the same

set of criteria. Under this process complainant's application received

the lowest score and it was not placed on the Best Qualified List

(BQL). According to the selecting official (SO), SE was chosen over

complainant because his application made the BQL, and he had superior

qualifications, especially in terms of years of experience at the GS-12

level (complainant had less than one year of current experience at the

GS-12 level at the time of application). SO considered SE's experience to

be more pertinent, more complex, and more recent than that of complainant.

Although complainant argues that his qualifications are "plainly superior"

noting that he earned a CPA and had successfully handled very complex tax

cases, his supervisors note deficiencies in his current GS-11 and GS-12

level work, and the record shows that the tax cases he refers to were

fifteen years ago. We also find that complainant's arguments that he

was deliberately disadvantaged by management when they failed to give him

"developmental assignments" and did not allow him to work higher grade tax

cases are not persuasive because the record shows that budget concerns

and an agency directive precluded these opportunities. Accordingly,

we do not find that complainant's qualifications were "plainly superior"

to that of SE's. See Vanek v. Department of the Treasury, EEOC Request

No. 05940906 (January 16, 1997). Moreover, we also find that the

record demonstrates that the selection process was fair and objective,

and that SO selected SE because he believed him to be best qualified

for the Position. Furthermore, after a careful review of the record,

we find no evidence that age discrimination was a factor in this decision.

Regarding incident 2, the record shows that complainant received a "fully

successful" rating. Complainant believes this PA is too low, arguing

that several critical factors should have been rated as "outstanding."

Our review of the PA shows that S provided detailed reasons to document

the ratings, and that he submitted into evidence a sample of complainant's

case "trailing" documentation to demonstrate its inadequacy.<4> We note

too the testimony of a former supervisor who corroborates this deficiency

in complainant's work as well. Moreover, as noted in the FAD, we also

find that complainant has failed to produce any evidence to support his

claim that his work during this period warranted a higher evaluation.

More importantly, we again find that the record is devoid of any

indication that S was motivated by age animus against complainant in

formulating the PA.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD as

CLARIFIED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS THE

DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your case

in court. "Agency" or "department" means the national organization, and

not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

2/18/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2We have carefully reviewed the record of evidence and find that it is

sufficient to support a determination in this case.

3Regarding the non-selection, the FAD determined that because the SE

was also over the age of 40 and close in age to complainant, they were

in the same protected class and that a prima facie case was defeated for

this reason as well. However, we find that a nine year age difference is

significant, so that the prima facie case is not defeated for this reason.

See Vasquez v. Department of the Army, EEOC Appeal No. 01933469 (July

11, 1994). We CLARIFY the FAD accordingly.

4Because complainant had only been at the GS-12 level a short time, and

could not been given a rating reflecting a full year of work at this

level, S testified that he gave S the benefit of the doubt and gave

him the same rating as he had earned previously at the GS-11 level.

S reasoned that this would be a higher rating than one would earn in

the first year at a higher level given the increased difficulty of the

work at a higher level. We find that this testimony further belies a

finding that S was motivated by age animus.